United States Postal Service

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 145 (N.L.R.B. 1974)

UNITED STATES POSTAL SERVICE
United States Postal Service and National Alliance of
Postal and Federal Employees , Local 912 and
National Alliance of Postal and Federal Employ-
ees, Local 604. Cases 14-CA-6611(P) and
14-CA-7058(P) [formerly Case 8-CA-6821(P)]
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On July 18, 1973, Administrative Law Judge James
V. Constantine issued the attached Decision in this
proceeding. Thereafter, both the General Counsel
and the Charging Parties filed exceptions and
supporting briefs, Respondent filed an answering
brief, and the National Association of Letter Carriers
filed a brief in support of the Administrative Law
Judge's Decision and in opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,2
findings,3 and conclusions of the Administrative Law
Judge4 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER KENNEDY, concurring:
I agree with my colleagues that Respondent did not
violate Section 8(a)(1) of the Act and that the
complaint herein should be dismissed on the merits.
1 America Postal Workers Union , AFL-CIO; National Association of
Letter Carriers , AFL-CIO: National Rural Letter Carriers Association: and
National Post Office Mail Handlers . Watchmen , Messengers and Group
Leaders Division of the Laborers' International Union of North America.
AFL-CIO, were listed in the consolidated complaint and notice of hearing
as Parties in Interest.
2 We find no merit in the Charging Parties' contention that the
Admmistiztive Law Judge was biased , prejudiced, and hostile or that the
hearing was not fairly conducted
3 Inasmuch as we agree with the Administrative Law Judge 's finding on
the menu of this case that Respondent did not violate Sec. 8 (a)(1) of the
Act, we do not find it necessary to reach the issue of whether the present
case is barred by the doctrines of res judicata or collateral estoppel.
The General Counsel has excepted, inter alto, to the Adnumstrative Law
Judge's finding that the transitional period is not created by the Postal
Reorganization Act. While the first full explication of the length of that
period may have been made by the U.S. District Court for the District of
Columbia in National Postal Union v. Blount, 341 F.Supp . 370 (D.C D.C.,
145
I disagree with the observation of the Administra-
tive Law Judge insofar as he concluded that the
decision in National Postal Union v. Blount, 341
F.Supp. 370 (D.C.D.C., 1972), affd. 409 U.S. 808
(1972), is dispositive of the instant case on principles
of res judicata or collateral estoppel. The Board
intervened in the Blount case to preserve its jurisdic-
tion over the subject matter of the Alliance's
amended complaint. In my view, the rejection by the
court of the Board's motion to dismiss that proceed-
ing on the ground that the amended complaint
invaded the primary jurisdiction of the Board does
not now deprive the Board of its authority to
consider and determine the merits of the alleged
unfair labor practice in the instant case . The court's
decision in the Blount case is no more binding upon
the Board with respect to the merits than the
unreported decision of the district court denying
10(j) injunctive relief. Certainly the district court's
ruling that there was not reasonable cause to support
the General Counsel's theory of violation does not
now foreclose a resolution on the merits by the
Board. See N. L.R.B. v. Denver Building & Construc-
tion Trades Council [Gould & Preisner], 341 U.S. 675
(1951); see also Boire v. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America [Pilot Motor Freight Carriers], 479 F.2d 778
(C.A. 5, 1973).
In view of the decision to dismiss the complaint
herein on the merits, it appears that the earlier
decision of the majority to intervene in the Blount
case and urge that the Alliance had the right to
represent employees during the "transitional period"
was ill advised. Similarly, the authorization by the
majority of the Board to institute 10(j) proceedings
and urge that same contention was imprudent. In
this proceeding, however, we are obliged to review
the record and decide the case on the merits
independent of any "preliminary proceedings for
interlocutory relief." In my judgment, we are not
obliged to perpetuate earlier erroneous judgments
and we are not bound by the earlier court decisions
1972), affd . 409 U.S 808 ( 1972), it is clear to us that the intent of Congress
was that Sec. 10(a) of the Postal Reorganization Act would provide for such
an interim period . In addition , we note that the Administrative Law Judge
found that prior to January 3, 1972, the right of a minority union to
represent employees in grievances was conferred upon employees by
Executive Orders 10988 and 11991 and art IX(E) of the 1968 national
agreement, but, at another point in his analysis , he found that this provision
expired with the contract on March 8. 1970. In view of his previous finding,
which is supported by the record, that the 1968 contract was extended
beyond its 1970 expiration date, we correct this error Accordingly, it
follows that the 1968 contract was "preserved" by Sec 1203(b) of the Postal
Reorganization Act until it was superseded by the transitional contract
executed July 20, 1971. The Administrative Law Judge's statement that the
1971 contract is "preserved" by that section of the Postal Reorganization
Act is therefore not adopted.
4 The Charging Parties' request for oral argument is hereby denied as the
record, exceptions , and briefs adequately present the issues and positions of
the parties.
208 NLRB No. 58
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the doctrine of res judicata or collateral
estoppel.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge:
These are two unfair labor practice cases which have been
consolidated for the purpose of trial . The consolidated case
was tried under the provisions of Section 10(b) of the
National Labor Relations Act, herein called the Act, 29
U.S.C. § 160(b). Said Act was extended to the United
States Postal Service by Chapter 12 of the Postal
Reorganization Act of August 12, 1970 , 84 Stat . 719; 39
U.S.C. § 101, et seq. The effective date of such extension is
July 1, 1971. See Section 15(a) of the PRA.
In Case 14-CA-6611(P) a charge was filed on January 3,
1972, by National Alliance of Postal and Federal Employ-
ees, Local 912 (herein called Local 912); and in Case
14-CA-7058(P) a charge and an amended charge were
filed on January 20 and 24 , 1972, respectively , by Local
604 of said National Alliance (herein called Local 604).
Each charge and the amended charge names United States
Postal Service (herein called Postal Service) as the
Respondent . Upon such charges and the amended charge
the General Counsel of the National Labor Relations
Board. by the Regional Director for Region 14, on October
2, 1972, ordered said cases consolidated and also issued a
consolidated complaint . Said complaint was amended on
October 3 , 1972. Said complaint as amended in substance
alleges that Respondent committed unfair labor practices
violating Section 8(a)(1) of the Act and affecting commerce
and the free flow of commerce . Respondent has answered
admitting some facts but denying that it engaged in any
unfair labor practices.
Pursuant to due notice this consolidated case came on to
be heard and was tried before me at St . Louis, Missouri, on
May 21 , 1973. Respondent , the Charging Parties, National
Association of Letter Carriers , and the General Counsel
were represented at and participated in the trial , and had
full opportunity to adduce evidence , examine and cross-
examine witnesses , file briefs , and present oral argument.
Counsel for the Charging Parties argued orally at the close
of the hearing . Briefs have been received from 'those parties
which were represented at the trial.
The motion of National Association of Letter Carriers,
AFL-CIO, herein called NALC, to dismiss the complaint
for failure to state a cause of action was denied at the
hearing , as was its motion to take official notice of the
record in National Postal Union v. Blount, 341 F.Supp. 370
(D.C.D.C., 1972).
Upon the entire record in this consolidated case, and
from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent provides postal services for the United
States of America. Although its main offices are located in
Washington, D.C., it operates various facilities throughout
the United States in performing said function. Jurisdiction
over Respondent and this proceeding is conferred on the
National Labor Relations Board by the above-mentioned
Postal Reorganization Act, Section 1209. 39 U.S.C. § 101,
et seq. For purposes of this case, the relevant provisions of
the Postal Reorganization Act, insofar as they relate to the
National Labor Relations Act, became effective on July 1,
1971, in accordance with the authority granted to the
board of governors of the Postal Service by Section 15(a)
of said Act.
Ii. THE LABOR ORGANIZATIONS INVOLVED
The following organizations are labor organizations
within the meaning of Sections 2(5) and 8(a) of the Act:
National Alliance of Postal and Federal Employees and its
Locals 912 and 604; American Postal Workers Union,
AFL-CIO ; National Association of Letter Carriers,
AFL-CIO; National Rural Letter Carriers Association;
and National Post Office Mail Handlers , Watchmen,
Messengers, and Group Leaders Division of the Laborers'
International Union of North America , AFL-CIO.
III. THE UNFAIR LABOR PRACTICES
In this consolidated case the issues are:
1. Whether Respondent has refused to permit its
employees to be represented by National Alliance, its
Locals 912 and 604, and other labor organizations,
although not recognized as exclusive bargaining represent-
atives, which such employees have selected to represent
them in grievance proceedings or "appellate action" during
the "transitional period" hereinafter set forth.
2. If the preceding issue is answered in the affirmative,
whether such refusal violates Section 8(a)(1) of the Act.
A. General Counsel's Evidence
Frederick D. Hogan, a window clerk in the main St.
Louis, Missouri, post office, and president of Local 912,
testified substantially as follows . Prior to the enactment of
the Postal Reorganization Act on August 12, 1970 (herein
called PRA), Local 912 was informally recognized at the
St. Louis post office. As a result thereof Local 912 until
January 3, 1972, was "allowed to represent employees" in
all grievances, adverse actions, equal employment opportu-
nity cases , and veteran preference cases. On said January 3
the Postal Service put into effect Article 15 "of the
contract" which "barred the National Alliance from
representing" employees regarding their grievances "in
relation to the contract," but did not restrict Local 912
from representing such employees as to the other matters
enumerated in the preceding sentence . Said contract is in
evidence as General Counsel's Exhibit 2, is for the period
of 2 years from July 20, 1971, and recognizes seven unions
(see article I thereof), none of which is the National
Alliance . But it stated that a "moratorium " was placed
upon its grievance and discipline procedures . Apparently
said moratorium expired on January 3, 1972.
As of January 3, 1972, Local 912 had employee
grievances pending before the St. Louis post office.
However, the said post office did not prevent said Local
UNITED STATES POSTAL SERVICE
from processing such grievances after said January 3.
Nevertheless, although Local 912 attempted to represent
employees concerning their grievances arising after said
January 3, the St. Louis post office refused to deal with
said Local on such grievances.
Matthew Smith, Jr., a distribution clerk in the post office
at Cleveland, Ohio, and president of Local 604 of the
National Alliance, also gave evidence for the General
Counsel. A summary of his testimony is recited at this
point. Smith also had been a vice president of said Local.
Said Local 604 has members in the Cleveland post office.
In his said capacity as vice president and president he
practically daily represented the Cleveland members of the
National Alliance "in adverse actions, grievances, et cetera."
With respect to such grievances Local 604 handled the
grievances of and represented employees from 1969 to
January 1972 "under the old grievance procedure of the
old agreement"; i.e., the contract which was in force from
March 9, 1968, to March 8, 1970.
Under the contract aforesaid Local 604 was allowed by
the postal officials to be present at, and represent
employees at, meetings with management concerning
grievances of such employees who were members of Local
604. But on January 5, 1972, Smith was advised by an
official of the Cleveland post office that the National
Alliance would no longer be recognized in handling
employee grievances, and that Smith could no longer
continue to attend to union business during his working
hours as he had done prior to this. As a result of being
denied the privileges heretofore accorded to him and the
National Alliance, Smith complained thereof to Mr.
Mizick , another official of the Cleveland post office.
Mizick replied that beginning January 3, 1972, the
National Alliance, "according to what ... was the
national agreement . . . no longer had the right to
represent its members in grievance procedures." Notwith-
standing that Smith took issue with this position, Mizick
adhered to it.
Then on January 13, 1972, Smith, accompanied by
Powell , the labor relations director of Local 604, met with
Postmaster Sullivan on the controversy over the rights or
privileges of the National Alliance. Sullivan replied that he
.,was under his instructions" to deny said rights and
privileges of the National Alliance as to grievances other
than those relating to Equal Employment Opportunity,
and that "the issue of representational rights . . . had to be
settled by the courts." But Sullivan added that the
National Alliance would be able to represent employees in
all grievance cases which had been filed before January 3,
1972. He concluded by reiterating that he "would not
honor" the National Alliance's requests to represent
employees on grievances filed after said January 3. Later
on January 13, 1972, Smith wrote to Sullivan. This letter
was not admitted into evidence on the ground it was a self-
serving declaration. (See G.C.Exh. 3.) Thereafter on a
"number of occasions" Smith attempted to represent
members of Local 604 in grievance proceedings in
I Said crdcr provides in part that "Recognition in whatever form
accorded shall not (1) preclude any employee . from choosing his own
representative in a grievance or appellate action ..:' 27 Fed Reg. 551
(1962)
2 In pertinent part this subsection provides that "The Postal Service shall
147
Cleveland but such gneva. ices were not entertained by the
Postal Service.
The General Counsel's last witness, Herbert L. Powell, a
distribution clerk in the Cleveland, Ohio, post office,
testified substantially as follows. (For some unexplained
reason Powell's testimony has been inserted in the
transcript following the testimony of Robert L. White, the
last witness for the Charging Parties.) Powell is president of
District 6 of the National Alliance, comprising Ohio,
Indiana, and Kentucky. In this latter capacity he processed
grievances "to their conclusion" for members of the
National Alliance employed by the Postal Service. During
the period prior to the effective date of the PRA the Postal
Service granted Local 604 "informal recognition" pursuant
to Executive Order 109881 to process said grievances.
Local 604 represents clerks, carvers, mail handlers, and
other crafts, but the National Alliance was not a party to
the collective-bargaining contracts of 1968 and 1971
between the Postal Service and certain national unions. On
the other hand, prior to the enactment of PRA Local 604
had contracts with the Cleveland post office covering
clerks, special delivery messengers, and mail handlers and
represented such employees in those crafts on grievances.
About January 13, 1972, Postmaster Sullivan of the
Cleveland post office notified Powell that the National
Alliance and its locals would no longer be allowed to
process grievances for its members who were employees of
said post office. Matthew Smith, Jr., then president of
Local 604, was also present on this occasion. Powell
disagreed with Sullivan, relying on section 1001(b)2 of the
PRA, but Sullivan contended that only those organizations
whom the Postal Service recognized as "exclusives"
(among which the National Alliance was not included)
could represent employees in grievance proceedings.
At this point the General Counsel rested. Thereupon the
Charging Parties introduced additional evidence, set forth
below, to support the complaint.
B. Evidence by the Charging Parties
Michael Wheeler, an employee of the St. Louis post
office and first vice president of Local 912, gave evidence
as a witness for the Charging Parties. A conspectus of his
testimony follows. Prior to January 3, 1972, Local 912
represented St. Louis postal employees on grievances
"under the national agreement between management and
the national craft unions." In such cases no other craft
union was present at or attended the meetings where said
grievances were considered by management. However,
since said January 3 the St. Louis post office has refused to
entertain or receive any grievances of employees when
represented by Local 912.
Another witness who appeared for the Charging Parties
is Robert L. White, the National President of the National
Alliance. An adequate summary of his testimony follows.
The National Alliance has 147 locals in 39 States, divided
into 10 districts. (At this point Respondent admitted that
establish procedures. in accordance with this title, to assure . . its
employees full protection of their employment rights by guaranteeing them
an opportunity for a fair hearing on adverse actions, with representatives of
their own choosing -
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said National Alliance was a labor organization within the
meaning of Section 2(5) of the Act, and that it had been
certified by the National Labor Relations Board "as a
representative of a group of Postal Service employees.")
Prior to January 3, 1972, the Postal Service had a "series
of national agreements" with seven labor organizations,
none of which was the National Alliance. Said seven are
set forth in General Counsel's Exhibit 2. The agreement for
the period March 9, 1968, to March 8, 1970, was extended
(see G.C. Exh. 2). The PRA went into effect on August 12,
1970. Thereafter, as well as prior thereto, and until January
3, 1972, the National Alliance and its locals processed
grievances of employee members of the Postal Service in
grievance proceedings pursuant to the agreement in
evidence as General Counsel's Exhibit 2 and its predeces-
sors. But after said January 3 Respondent refused to
entertain such grievances when processed by the National
Alliance, or its locals, or both.
C. Concluding Findings and Discussion
Upon the evidence introduced by the General Counsel
and the Charging Parties, which I hereby credit, it is
patent. and I find, that until January 3, 1972, Respondent's
employees were allowed to select any representative to
represent them in grievance proceedings regardless of
whether or not such representative was connected with the
craft unions then accorded national exclusive recognition.
This practice was sanctioned in the St. Louis and
Cleveland post offices. Although the National Alliance was
not one of the unions enjoying such national exclusive
national recognition, it did handle grievances for postal
employees at the St. Louis and Cleveland post offices
notwithstanding the craft unions had collective-bargaining
agreements with said post offices and the National
Alliance did not.
Further, I find that on and after January 3, 1972,
Respondent refused to continue such practice and insisted
that only craft unions signatory to the 1971 National
Agreement would be permitted to handle grievances for
employees of the St. Louis and Cleveland post offices, and
denied such employees the right to select the National
Alliance as their representative in grievance proceedings
except as to grievances pending on January 3, 1972. Prior
to January 3, 1972, such right was conferred upon postal
employees by Executive Orders 10988 and 11991 and
article IX(E) of the 1968 collective-bargaining agreement
between Respondent's predecessor, the Post Office-Depart-
ment, and the labor organizations mentioned in the
complaint as parties in interest. The question then is
whether Respondent's abrogating said rights on January 3,
1972, to employees who were not members of said parties
in interest constitutes an unfair labor practice under the
National Labor Relations Act.
It is my opinion, and I find, that Respondent did not
commit any unfair labor practices on the record developed
at the trial of this case. This is because in my judgment the
rights of the National Alliance's members to have their
grievances processed by it are to be ascertained pursuant to
Section 9(a) of the National Labor Relations Act; that the
PRA so provides in section 1209(a) thereof; that the PRA
extended to the National Alliance no separate or special
right to process the grievances of its members inconsistent
with said Section 9(a); and that the parties in interest in
this case are the only labor organizations which may
process grievances under said Section 9(a). The reasons for
this conclusion are briefly elucidated in the remainder of
this Decision.
1. Initially , I am impressed with the contention,
advanced by Respondent and National Association of
Letter Carriers , that the district court 's opinion and
decision in National Postal Union v. Blount, 341 F.Supp. 370
(D.C.D.C., 1972), affd . 409 U .S. 808 ( 1972), require a
finding for Respondent either on the ground of resjudicata
or collateral estoppel . Partmar Corp. v. Paramount Corp.,
347 U.S. 89, 90-91, 103, fn . 9. And , of course , the Board
and the National Alliance , as parties to the Blount case, are
bound by anything decided therein and affirmed on
appeal . Safir v. Gibson, 432 F .2d 137, 143-144 (C.A. 2);
Commissioner v. Sunnen, 333 U.S. 591, 597-598; Carmicha-
el v. Allen, 267 F.Supp . 985, 991 (D.C.N.D. Ga.). Patently
the Board , as intervenor , became a party . Galbreath v.
Metropolitan Trust Co., 134 F.2d 569 , 570 (C.A. 10). In my
judgment said Blount case will dispose of the instant case
by requiring that it be dismissed . But I believe it is
desirable to decide the case on the merits , as I may be
wrong in deciding that res judicata or collateral estoppel is
dispositive of the instant case.
2. However, I find as lacking in ment the request that
the complaint be dismissed because the Regional Director
had dismissed part of the charge in Case l4-CA-6609(P)
before issuing the complaint herein . On this aspect of the
case I am of the opinion , and rule , that the said dismissal
involved unrelated alleged violations and did not affect the
case which was tried before me. Consequently , I adhere to
the ruling which I make at the trial that the dismissal of
another aspect of the charge did not touch upon the phase
of the charge which was presented to me by the complaint.
3. On the merits I find that the case must be dismissed
and I shall so recommend . It is true that , prior to January
3, 1972, post office employees, as alleged in paragraph II
of the complaint , enjoyed the right to select any labor
organization to represent them in grievance and adverse
action proceedings notwithstanding that such labor organi-
zation had not representational status and even if another
labor organization represented such employees on an
exclusive basis. Executive Orders 10988 ( 1962) and 11991
(1969) acknowledged this procedure. Thus, although the
post office recognized the parties in interest mentioned in
paragraph 5 of the complaint as the exclusive bargaining
representatives of its employees, the Charging Parties,
although not so recognized, were permitted to be chosen by
employees to represent them in grievance and adverse
action proceedings during this time.
Article IX(E) of the 1968 contract between the post
office and the above-described parties in interest continued
and preserved the foregoing practice of extending to an
employee "the right to select whomever he desires to
represent him at each level of the grievance procedure. In
the event that the person selected at the various levels is
someone other than a representative of the exclusive
organization, the exclusive organization at that level has a
right to be present." The privilege described in the quoted
UNITED STATES POSTAL SERVICE
language above, taken from said article IX(E), conferred
upon a minority union greater rights than such union
would have had under Section 9(a) of our Act, for said
Section 9(a) did not grant minority unions the right to
represent employees on grievances during the period when
their employer lawfully recognized another union as the
exclusive bargaining representative of such employees.
Nevertheless I find, and the answer admits, that these
rights to be represented by a minority union at each level
of the grievance procedure "were in full force and effect at
the time of the enactment of the PRA." See article XV of
the General Counsel's Exhibit 2, which is the July 20,
1971-July 20, 1973, contract between the U.S. Postal
Service and seven unions recognized by it.
But I find that the rights of employees to select a
nonrecognized union to be their representative in grievance
proceedings did not continue indefinitely after said
contract was executed. The General Counsel and the
Charging Parties contend that these rights remained intact
during the "transitional period," which period is character-
ized in paragraph 9 of the complaint as:
... the period of time from the enactment of the
PRA until such time as the Board determines appropri-
ate units of Respondent's employees and directs
elections therein to determine which, if any, labor
organizations shall represent Respondent's employees
in such units, or until the expiration date of the
[1971-1973] contract, viz., July 20, 1973, whichever
event occurs sooner.
But nothing in the PRA requires the conclusion that said
rights were protected during any period following its
enactment. While it is true that sec. 1001 of the PRA
provides that the Postal Service "shall establish procedures
... to assure its officers and employees full protection of
their employment rights by guaranteeing them an opportu-
nity for a fair hearing on adverse actions, with representa-
tives of their own choosing," the tenor of said PRA makes
clear that "representatives" is intended to mean a labor
organization accorded "exclusive recognition" and does
not comprehend a minority union. See PRA, chapter 12,
secs. 1202-1209. An example suffices; sec. 1209(a) of the
PRA commands that the National Labor Relations Act
shall govern employee management relations in the Postal
Service. Yet the NLRA does not accord a minority union
the right to represent employees on grievances when
another union enjoys exclusive recogmtion as the repre-
sentative of such employees: Meat and Provision Drivers
Union, Local No. 626, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, 115 NLRB 890, 892; Federal Telephone and
Radio Company, a Division of International Telephone and
Telegraph Corporation, 107 NLRB 649, 653.
Nor is there any intimation in Blount, 341 F.Supp. 370,
that a union not being accorded exclusive recognition
would be able to represent employees on grievances during
this so-called "transitional period." In fact the opinion in
said case expressly states that the complaint therein
challenged, on constitutional grounds, that section 10(a) of
the PRA granted "during a transitional period the right of
exclusive representation in collective bargaining with
149
defendant Postmaster General to the defendant labor
organizations, which had been successful under elections
last held under the terms of the Executive Orders." Blount,
supra at 372. Hence I rule that said "transitional period" is
not created by statute, and that, therefore, it is not a period
during which the rights of minority unions to represent
employees on grievances survived the enactment of the
PRA.
Notwithstanding that the PRA does not mention a
"transitional period," the Postal Service and the unions
which are signatories to the National Agreement of July
20, 1971 (see G.C. Exh. 2) themselves agreed upon a
"moratorium" as to grievance and discipline procedures
before its implementation. (See moratorium in G.C. Exh.
2.) But said parties to said National Agreement agreed that
said "moratorium" would terminate, and effectuation of
article XV of said agreement would commence, on January
3, 1972 . But I find, as briefly discussed below, that by
abolishing said "moratorium" any rights of the charging
parties, as nonexclusively recognized unions, existing prior
thereto were destroyed.
Nothing in the express language of the PRA, or in its
legislative history, suggests that it was intended to extend
to nonexclusive unions the right to represent employees in
prosecuting their grievances contrary to established princi-
ples announced in the National Labor Relations Act. One
of those principles denies a union the right to act on behalf
of employees in grievance procedures when another union
is a majority representative entitled to exclusive recogni-
tion as such. Section 9(a) of said Act so provides. Patently
said Section 9(a) does not grant to nonexclusive unions
advantages which are peculiar to majority unions only.
Certainly the proviso to said Section 9(a) does not aid the
General Counsel, for this does no more than to permit an
employee to present his grievances personally "without the
intervention of the [majority] bargaining representative";
but it has never been construed to grant such employee the
right to select a nonexclusive union to represent him on
such grievances.
It cannot be denied that section 1001(b) of the PRA in
general terms admonishes the Postal Service to "establish
procedures, in accordance with this Title, to assure its
officers and employees . . . full protection of their
employment rights by guaranteeing them an opportunity
for a fair hearing on adverse actions, with representatives
of their own choosing." But the word "representatives,"
fairly construed, must be read in conjunction with the use
of said word in Section 9(a) of the National Labor
Relations Act, since section 1209 of the PRA requires that
"employee-management relations shall . . . be subject to
the provisions of" the National Labor Relations Act. And,
as mentioned above, said latter Act expressly considers
"representatives" to be a majority union which is the
"exclusive representative of all the employees in [a] unit."
So read, I am convinced, and rule, that the identical
language used in both Acts provide the same rights in each
Act, for otherwise it would be necessary to attribute to
Congress an intent to provide postal employees with
greater rights than nonpostal employees.
I am aware that it is not unusual that the same work may
sometimes connote different meanings even in the same
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statute. See, for example, United States v. Ryan, 350 U.S.
299, 306-307, where the word "representative" in Title I
includes only the exclusive bargaining agent but is not so
limited when used in Title III of the same statute. But the
Court arrived at such a conclusion because it found that
the legislative purport of the entire subject matter in Title
III and Title II manifested a congressional purpose to
cover more ground than Title 1. Plainly the congressional
will controls in ascertaining what Congress is regulating.
But I am of the opinion that, unlike Ryan, supra, Congress
desired the word "representative" in the PRA to have the
same meaning which it carried in Title I of the National
Labor Relations Act. Cf. N.L.RB. v. Lion Oil Company,
352 U.S. 282, 288 (1957).
Section 1203(b) of the PRA does not detract from the
foregoing analysis. That section requires that "Agreements
and supplements in effect on the date of enactment of this
section covering employees in the former Post Office
Department shall continue to be recognized by the Postal
Service until altered or amended pursuant to law." But no
agreement granting rights to the National Alliance is
shown to have been in existence when said section 1203(b)
was enacted. Article IX(E) of the 1968 contract conferred
rights on an employee to select "whomever he desires" to
represent him in grievance proceedings, but this provision
expired with the contract on March 8, 1970. Moreover the
successor contract, i.e., that of July 20, 1971 (see G.C. Exh.
2), unlike its predecessor, does not grant an employee the
right to choose any organization he desires to so represent
him. Rather, said 1971 contract provides that the employee
may handle his grievance alone or "may be accompanied
by his steward or a union representative, if he so desires."
See article XV. But the word "union" is defined in the
preamble to said 1971 contract as only those labor
organizations who are parties to the contract, and the
National Alliance is not one of them.
It follows that the 1968 contract can not be revived by
said section 1203(b) of the PRA, but that only the 1971
contract is preserved by said section . But, as set forth
above, the 1971 contract cannot aid the National Alliance
because it is not mentioned therein as one of the "unions"
enjoying the rights specified in said contract. Nor can
section 1206(b) of the PRA aid the General Counsel. This
part of the statute authorizes collective-bargaining agree-
ments to "include any procedures for resolution by the
parties of grievances and adverse actions ...." I assume
this provision empowers the parties to agree that employ-
ees may choose any labor organization to act for them in
grievance proceedings. But the 1971 contract between the
parties expressly states that only unions which are parties
to that agreement-and the National Alliance is not one of
them-may represent employees on their grievances.
Hence section 1209 of the PRA is controlling. It decrees
that the subject matter involved in this case "shall . . . be
subject to the provisions of" the National Labor Relations
Act. And this latter Act, as found above, fails to bestow
upon a nonexclusive union the right to represent employees
in grievance transactions.
4. Finally, I do not reach the question of whether a
union, such as the National Alliance, may represent
employees in grievance proceedings under the National
Labor Relations Act when no exclusive bargaining agent
represents or is entitled to represent such employees. This
is because the record not only is barren of evidence
indicating that the parties in interest in this case are not
entitled to be exclusive bargaining representatives in their
respective bargaining units, but also the complaint in
paragraph 8 explicitly acknowledges that said parties in
interest "are the exclusive bargaining representatives of
Respondent's employees for a period of time known as the
`transitional period.' "
However, paragraph 7 of said complaint also concedes
that said parties in interest have been recognized by
Respondent "as the exclusive bargaining representatives of
its employees and has negotiated and entered into a 2 year
contract effective July 20, 1971, with said labor organiza-
tions." Manifestly the General Counsel thus admits that
Respondent has lawfully recognized the parties in interest
pursuant to Section 9(a) of the National Labor Relations
Act. But under said Act such recognition continues for the
term of said contract unless affirmative evidence is
introduced that such recognition no longer is viable before
said 2 years have expired. Further, such recognition does
not entitle any other union, such as the National Alliance,
to represent employees in grievance proceedings, as only
the validly recognized union may so represent employees
as of right. Accordingly, Respondent on January 3, 1972,
and thereafter lawfully refused to permit its employees to
be represented by the National Alliance in grievance and
adverse action proceedings. Hence nothing in the record
warrants consideration of the question whether Respon-
dent had to deal with the National Alliance if no
exclusively recognized unions were in the picture.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, which provides postal services for the
United States of America, is covered by the National
Labor Relations Act and is subject to the jurisdiction of
the National Labor Relations Board by virtue of the
pertinent provisions of chapter 12 of the Postal Reorgani-
zation Act (39 U.S.C. § 1201-1209).
2. The Charging Parties and the Parties in Interest
described in the complaint each is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has been under no legal obligation since
January 3, 1972, to grant its employees the right to pick the
National Alliance and the Charging Parties to serve as
their representative or agent in grievance and adverse
action proceedings.
4. By refusing to permit its employees on and after
January 3, 1972, to designate the National Alliance and the
Charging Parties to represent them in grievance and
adverse action proceedings (except as to such proceedings
which were in the process of being prosecuted on said
UNITED STATES POSTAL SERVICE
January 3), Respondent has not committed any unfair
labor practices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, I hereby issue
the following recommended:
ORDERS
151
It is ordered that the complaint be, and it hereby is,
dismissed.
R In the event no exceptions are filed as provided in Sec 102 .46 of the 102 48 of said Rules and Regulations, be adopted by the said Board and
Rules and Regulations of the National Labor Rclations Board , the findings . beLorne its findings, conclusions , and order, and all objections thereto shall
conclusions, and recommended Order herein shall , as provided in Sec be deemed waived for all purposes